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JOHN AMBURGY, )
)
Plaintiff, )
)
v. ) No. 4:09CV705 FRB
)
EXPRESS SCRIPTS, INC.,1 )
)
Defendant. )
1
The Complaint also includes nine “Does” as defendants in the
cause. Upon plaintiff’s motion, these Doe defendants were
dismissed from the case without prejudice in accordance with Fed.
R. Civ. P. 41(a)(1)(A)(i). (See Order entered Oct. 13, 2009/Doc.
#49.)
2
The matter of class certification has not yet been determined
in this cause.
Case 4:09-cv-00705-FRB Document 53 Filed 11/23/2009 Page 2 of 22
2008 with a notice posted on its website, and that Express Scripts
members “have spent (or will need to spend) considerable time and
3
Plaintiff avers that in the extortion letter, the
extortionists included information pertaining to approximately
seventy-five individuals, but also claimed that they had similar
information on millions of Express Scripts members.
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pursue the claims, and, further, that the Complaint fails to state
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Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973)). In class
class must establish that he, personally, has standing to bring the
on his own behalf, he may not seek such relief on behalf of the
class. Id.; Hall v. Lhaco, Inc., 140 F.3d 1190, 1196-97 (8th Cir.
1998).
560-61 (1992); Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.
Zwickler, 394 U.S. 103, 109-10 (1969); Maryland Cas. Co. v. Pacific
Coal & Oil Co., 312 U.S. 270, 273 (1941); United Pub. Workers v.
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Mitchell, 330 U.S. 75, 89-91 (1947)). See also Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81 (2000).
had his confidential information stolen and thus does not allege
well taken.
costs for closing and opening financial accounts, and damages for
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spoken on this precise issue, one circuit court has addressed the
Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629 (7th Cir. 2007), the
accounts or that they had in fact been the victim of identity theft
risk of future harm that the plaintiff would have otherwise faced,
conclusion, the court relied on cases from the Second and Sixth
4
Compare, e.g., Randolph v. ING Life Ins. & Annuity Co., 486
F. Supp. 2d 1 (D.D.C. 2007); Key v. DSW, Inc., 454 F. Supp. 2d 684
(S.D. Ohio 2006); Bell v. Acxiom Corp., No. 4:06CV00485-WRW, 2006
WL 2850042 (E.D. Ark. Oct. 3, 2006); Giordano v. Wachovia Sec.,
LLC, No. 06-476 (JBS), 2006 WL 2177036 (D.N.J. July 31, 2006) (no
standing), with, e.g., Ruiz v. Gap, Inc., 622 F. Supp. 2d 908 (N.D.
Cal. 2009); Caudle v. Towers, Perrin, Forster & Crosby, Inc., 580
F. Supp. 2d 273 (S.D.N.Y. 2008); McLoughlin v. People’s United
Bank, Inc., No. 3:08-cv-00944 (VLB), 2009 WL 2843269 (D. Conn. Aug.
31, 2009) (standing).
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and from the Fourth and Ninth Circuits, which addressed increased
5
Notably, and as relevant infra, such claims have nevertheless
been dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state
a claim.
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therein:
Id. at 161.
itself.” Id. at 161; see also id. at 155 (court must put aside the
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Lyons, 461 U.S. 95, 102 (1983) (“immediate”). The Supreme Court
short, plaintiff does not claim that his personal information has
6
See, e.g., Pltf.’s Oppos., Doc. #19 at p. 15 (whether
plaintiff’s personal information is in the hands of criminals and
may be used unlawfully is a question of fact); at pp. 20-21
(plaintiff “may very well be” one of those whose information was
stolen).
7
See, e.g., Pltf.’s Oppos., Doc. #19 at p. 3 (plaintiffs “may
suffer” irreversible damage “if” their confidential medical
information becomes public).
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the time when any such occurrence would come to pass (if ever) is
not too speculative for Article III purposes — that the injury is
“[W]e have said many times before and reiterate today: Allegations
omitted).
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and “if” his identity was stolen as a result, and “if” the use of
that he has standing to bring this suit under Article III, because
concrete injury-in-fact.
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Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964-65 (2007);
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While the Complaint
therein, Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200
Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008)
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Rule 12(b)(6):
can be granted.
1. Negligence
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resulting in damage.
time spent to monitor credit and other accounts, the loss and
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& n.3, but the plaintiff here brings his claim in negligence.
Hyde v. City of Columbia, 637 S.W.2d 251, 264 (Mo. Ct. App. 1982).
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where one does not exist. See Gregory, 565 F.3d at 473.
Civ. P. 12(b)(6).
2. Breach of Contract
breach of contract.
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law are: “‘(1) a contract between the plaintiff and the defendant;
the contract; (3) breach of the contract by the defendant; and (4)
Ins. Co., 272 S.W.3d 455, 461 (Mo. Ct. App. 2008) (quoting Howe v.
ALD Servs., Inc., 941 S.W.2d 645, 650 (Mo. Ct. App. 1997)). To
contract and its breach. Brion v. Vigilant Ins. Co., 651 S.W.2d
183, 185 (Mo. Ct. App. 1983). Such averments are sufficient to
Shirley’s Realty, Inc. v. Hunt, 160 S.W.3d 804, 808 (Mo. Ct. App.
Sindel, 837 S.W.2d 350, 354 (Mo. Ct. App. 1992) (A plaintiff’s bare
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at Section A.
as to the class.
1525, 1540 n.8 (8th Cir. 1996); see also Hall, 140 F.3d at 1197.
pursue the claim upon which he seeks relief for the proposed class.
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Iowa v. Farmland Indus., Inc., 120 F.3d 893, 889 (8th Cir. 1997)
Missouri law.
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Inc., 267 S.W.3d 712, 716 (Mo. Ct. App. 2008). Its purpose is to
public transactions.” Id. As such, under the MMPA, the “act, use
damages, as well as attorney fees, from any person who has engaged
Inc., 290 S.W.3d 721, 725 (Mo. banc 2009) (quoting Mo. Rev. Stat.
Inc., 211 S.W.3d 673, 675 (Mo. Ct. App. 2007). A claim of damages
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Ziglin v. Players MH, L.P., 36 S.W.3d 786, 790 (Mo. Ct. App. 2001).
(Bankr. E.D. Mo. 2008) (elements of MMPA claim include that alleged
Plaintiff does not allege, however, that his loss was in relation
8
For purposes of the MMPA, “merchandise” includes intangibles
and services. Mo. Rev. Stat. § 407.010(4).
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C. Conclusion
jurisdiction.
Therefore,
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